Vasquez v. Holder, 05-73714.

• Decision Date: 19 April 2010
• Docket Number: No. 05-73714.,05-73714.
• Parties: Renerose VASQUEZ, Petitioner, v. Eric H. HOLDER Jr., Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

602 F.3d 1003

Renerose VASQUEZ, Petitioner, v. Eric H. HOLDER Jr., Attorney General, Respondent.

No. 05-73714.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted October 6, 2009.

Filed April 19, 2010.

COPYRIGHT MATERIAL OMITTED

Jeremiah Johnson, San Francisco, CA, for the petitioner.

Peter D. Keisler, Richard M. Evans, and Allen W. Hausman, U.S. Department of Justice, Washington, DC, for the Attorney General.

Before: MARY M. SCHROEDER and MARSHA S. BERZON, Circuit Judges, and Honorable LYLE E. STROM,^* District Judge.

BERZON, Circuit Judge:

We consider whether an alien whose legal status as the spouse of a citizen is later terminated because the marriage was fraudulent is eligible for discretionary relief from removal. We conclude that she is. We grant the petition and remand to the Board of Immigration Appeals to determine whether petitioner Renerose Vasquez's application for a fraud waiver should be denied in the exercise of discretion.

BACKGROUND

Renerose Vasquez¹ (Vasquez) is a 37-year-old native and citizen of the Philippines. She married Wilfredo Vasquez, a U.S. citizen, in the Philippines in January 1994. On February 3, 1995, Vasquez was admitted to the United States as a conditional permanent resident as the wife of a U.S. citizen.

A. Statutory Background

We refer to Vasquez as a conditional permanent resident because an alien admitted to the United States for permanent residence as a spouse of a U.S. citizen obtains that status only conditionally, pursuant to section 216 of the Immigration and Nationality Act (INA), 8 U.S.C. § 1186a.² To remove the condition, the alien and her spouse must submit a joint petition to the Attorney General³ within the 90-day period before the second anniversary of the alien's admission as a permanent resident, stating, among other things, that the marriage was not entered into for immigration purposes. § 216(c)(1), (d)(1), (d)(2). The alien and her spouse must then appear together for an interview. If the Attorney General determines that the facts in the petition are true, including the representation that the marriage was bona fide, the condition is removed and the alien spouse remains a legal resident. § 216(c)(3), (d)(1).

There are three circumstances in which the Attorney General must terminate an alien's conditional permanent resident status: First, if the Attorney General determines, before the second anniversary of admission, that the qualifying marriage is invalid as a basis for permanent resident status because it was entered into for immigration purposes, or has been judicially terminated, or a fee was paid for the filing of the petition for immediate relative status, then the Attorney General "shall terminate the permanent resident status of the alien ... involved as of the date of the determination." § 216(b)(1). Second, if the alien and her spouse do not file a timely joint petition to remove the conditions on residence or do not appear for the required interview, then the Attorney General "shall terminate the permanent resident status of the alien as of the second anniversary of the alien's lawful admission for permanent residence." § 216(c)(2). Third, if the alien and her spouse file a petition at the proper time and appear for an interview but the Attorney General determines that the qualifying marriage was not "entered into in accordance with the laws of the place where the marriage took place," has been judicially terminated, or was "entered into for the purpose of procuring an alien's admission as an immigrant," or a fee was paid for the filing of a petition for immediate relative status, § 216(d)(1)(A), then the Attorney General "shall terminate the permanent resident status of an alien spouse ... as of the date of the determination." § 216(c)(3)(C).

Section 216(c)(4) allows the Attorney General to remove the conditions on residence for an alien who fails to meet the joint petition requirement. The alien must demonstrate that she meets one of three criteria, one of which is that "extreme hardship" would result if she were removed. § 216(c)(4)(A).⁴

B. Factual Background

As required, Vasquez and Wilfredo Vasquez filed a joint petition to remove the conditions on residence and appeared for an interview on May 20, 1998, with the INS. Thenceforward, the case unwound in Byzantine fashion: It took seven years to reach a final agency conclusion, required the filing of several INS forms, triggered four hearings before immigration judges (IJs) reflecting seemingly contradictory arguments by each party, and resulted in seemingly contradictory rulings, by two different IJs.

First, at the INS interview on the joint petition, Wilfredo Vasquez signed an affidavit stating that Vasquez's grandmother promised him $3000 (half of which he accepted, half of which he refused) to marry Vasquez for immigration purposes. Vasquez signed an affidavit stating that she knew she "did wrong" and that her grandmother "paid Wilfredo Vasquez because she's trying to help usbecause that's the one way." The INS issued a written notice terminating Vasquez's conditional resident status. The notice recounted Wilfredo Vasquez's admission that the marriage was "entered into for the sole purpose of obtaining immigration benefits," and cited Matter of McKee, 17 I. & N. Dec. 332,1980 WL 121883 (BIA 1990), for the proposition that "a marriage that is entered into for the primary purpose of circumventing the immigration laws, referred to as a fraudulent or sham marriage, has not been recognized as enabling an alien spouse to obtain immigration benefits." It concluded: "Based on the foregoing facts and since the Petition ... is a joint petition and no longer represents the signature of the United States citizen spouse, the petition may not be approved and therefore must be denied."

The INS then served Vasquez with a Notice to Appear, charging her with removability under INA § 237(a)(1)(A), 8 U.S.C. § 1227(a)(1)(A), as an alien inadmissible at the time of admission because she sought to procure admission by fraud. While removal proceedings were pending, Vasquez filed a second petition to remove the conditions on residence, this time seeking an extreme hardship waiver under § 216(c)(4)(A). After Vasquez appeared before an IJ and denied she had committed marriage fraud, the removal proceedings were continued to await the INS's adjudication of Vasquez's pending application for a waiver.

Vasquez divorced Wilfredo Vasquez on June 2, 2000, and married Frederick Villanueva, a U.S. citizen, on December 8, 2000. Vasquez and Villanueva had a son, Eren Villanueva, on September 10, 1999. Eren has "mild persistent asthma," which has required his hospitalization at least twice. Villanueva filed an immediate relative petition on Vasquez's behalf. To facilitate that petition, Vasquez filed a second request for waiver of the joint petition requirement, this time on the basis that her marriage to Wilfredo had been terminated but was entered into in good faith. Finally, in 2003 Vasquez supplemented her application for an extreme hardship waiver with documentation of hardship to her U.S. citizen husband and child.

C. Immigration Proceedings

1. Hearing of August 15, 2003

On December 9, 2002, the INS issued a written notice denying Vasquez's application for an extreme hardship waiver. The notice stated, inter alia, that Vasquez was not statutorily eligible to apply for the waiver because she had met the joint petition requirement. Her petition had been denied on its merits, the INS ruled, for marriage fraud.

The removal proceedings were then renewed, and Vasquez appeared before a visiting immigration judge, IJ Smith, on August 15, 2003. Vasquez testified that her marriage to Wilfredo Vasquez was in good faith but she did not move in with him because she was afraid that his ex-wife—her aunt—would be jealous. IJ Smith held that the government had justified its decision to terminate Vasquez's status by a preponderance of the evidence, because it had shown that "the marriage to Wilfredo Vasquez was entered into for the purpose of immigrating to the United States and no other basis." Ruling that no extreme hardship waiver was available because the joint petition had been filed but denied, IJ Smith continued the proceedings so that Vasquez could seek a waiver under § 237(a)(1)(H) (the "fraud waiver"). The fraud waiver provision allows the Attorney General to waive removal for an alien who sought to procure admission by fraud and is the spouse or parent of a U.S. citizen.

2. Hearing of January 28, 2004

The DHS responded to this suggestion by filing an additional charge of removability against Vasquez on October 24, 2003: It now charged that she was removable not only for fraudulent admission but also, pursuant to § 237(a)(1)(D)(i), as an alien who was lawfully admitted for conditional permanent resident status but whose status was later terminated.

Vasquez appeared before IJ Yam on January 28, 2004. IJ Yam held that the fraud waiver did not apply to the additional charge filed against Vasquez. She therefore pretermitted Vasquez's application for a fraud waiver and, in the alternative, denied the waiver "in the exercise of discretion." Finding Vasquez ineligible for relief, the IJ ordered her removed to the Philippines.

3. BIA Appeal

Vasquez timely appealed the IJs' orders to the Board of Immigration Appeals (BIA). The BIA addressed both IJ rulings in a single decision, affirming IJ Smith's ruling that Vasquez was ineligible to apply for an extreme hardship waiver, IJ Yam's ruling that the fraud waiver would not cover both grounds of removal, and, in the alternative, IJ Yam's discretionary waiver denial.⁵ Premised on these rulings, the BIA dismissed Vasquez's appeal from the removal order.

ANALYSIS

Because the BIA conducted a de novo review and issued its own decision, our review is limited to the BIA's decision except to the extent that the BIA expressly adopted the opinions...